KCA Questions Whether Pi’ilani Promenade Outlet Mall is in Compliance With Community Plan, Land Use Commission Order

In KCA’s March 11, 2012 letter to Mayor Alan Arakawa the Board of Directors asks the administration to give a second look at the Piilani Promenade Outlet Mall to assure that it is in compliance with the Kihei-Makena Community Plan, the Order Issued at the Land Use Commission in 1995 that is recorded against the property, and the Countywide Policy Plan adopted in 2010.  A copy of the letter can be seen below:

 

March 11, 2012

The Honorable Alan Arakawa
Mayor, Maui County
200 High Street
Wailuku, HI 96793

Re: Pi’ilani Promenade

 

Dear Mayor Arakawa,

 

I am writing to you on behalf of the Kihei Community Association (KCA), its board of directors and the South Maui community at large.

KCA and its members are deeply concerned about the proposed Pi’ilani Promenade retail outlet commercial development located mauka of the Pi’ilani Highway just south of the existing industrial complex off Ohukai Street.  We are informed that the administration is currently in the process of issuing permits for the development.  We ask that you give a second look to assure that this project is in compliance with the Kihei-Makena Community Plan, the Order issued by the Land Use Commission in 1995 that is recorded against the property and the Countywide Policy Plan adopted in 2010 before permitting this project.

 

1. The Kihei-Makena Community Plan (“KMCP”)

 

The KMCP was enacted into law by adoption of Maui County Code section 2.80B.070, subsection C.6.  As stated in that code section, the KCMP was the product of input from the state, county agencies and the general public and was prepared in accordance with the dictates of 2,80B.070B: “Each community plan shall be developed with public notification and participation, facilitated by the use of tools such as public opinion surveys, community design charettes, public hearings and informational meetings, radio, newspaper, television, and other types of communication and direct consultation with different age, economic, and other groups.”  As such it is not a document to be taken lightly.  Indeed, an earlier version of the KMCP was put to the test by the Hawaii Supreme Count in 1998 in the case of Gatri v. Blane where the court stated: “The KMCP was adopted after extensive public input and enacted into law by the Maui County Council on July 17, 1985 as an amendment to section 2.80.050 of the Maui County Code. It is part of the general plan of MauiCounty. Therefore, it has the force and effect of law and a proposed development which is inconsistent with the KMCP may not be awarded an SMA permit without a plan amendment.”

The KMCP is an expression of the will of the people of south Maui and it is the law of the land. It contains several provisions that bear upon the proposed Pi’ilani Promenade project, none of which support it.

For instance, the plan recognizes the linear orientation of the community that “forces residents to travel by car for their shopping, recreation and other basic needs, often resulting in traffic congestion.”  (KMCP p. 16.)  Consequently, one of the stated goals of the plan is to have a “well-planned” community.  (Ibid p.16.)  How that is to be achieved is listed with specificity:

“h. Develop commercial services at the following locations to meet community needs: 1) North Kihei between the existing South Kihei Road, Pi’ilani Highway and Uwapo Road.  2) A central business and commercial center for Kihei clustered about the South Kihei Road/Road “C” intersection.  3) In existing commercially zoned areas along South Kihei Road in the vicinity of Kalama Park. 4) Along South Kihei Road opposite the Kama’ole Beach Parks.”  (KMCP pp. 17-18)

[Note the absence of reference to the area proposed to be developed into the Pi’ilani Promenade – to avoid further sprawl, to create a sense of place and to address the auto-centric character of the community.]

“k. Provide for limited expansion of light industrial services in the area south of Ohukai and mauka ofPi’ilani Highway. . . .  These areas should limit retail business or commercial activities to the extent that they are accessory or provide services to the predominate light industrial use.”  (KMCP p. 18.)

[Note that the Pi’ilani Promenade is a retail outlet shopping mall without any light industrial component.]

In addition to the above, the KMCP speaks to community planning (pp. 41-42):

“C. Planning Standards

The following planning standards are specific guidelines or measures for development and design.  These standards are essential in clarifying the intent of the land use and urban design objectives and policies.

1. All zoning and/or proposed land use applications and developments shall be consistent with the Land Use Map and the Objectives and Policies of the Kihei-Makena Community Plan.”  [Emphasis added.]

As you can see, the Pi’ilani Promenade project fails to comply with the KMCP.

 

2.  Maui County Countywide Policy Plan

 

In March 2010, the Maui County Council adopted the “Maui County 2030 General Plan Countywide Policy Plan (“MCCPP”).  The MCCPP speaks to sustainable living, healthy communities and land stewardship, among other things.  The plan speaks against urban sprawl and for smart growth.  (MCCPP pp. 20-21.)   “[S]mart Growth is based on development designed at a scale to be comfortable to a pedestrian, not an automobile.”  (MCCPP p. 21.)

By any measure, the Pi’ilani Promenade retail outlet shopping center represents sprawl eschewed in the MCCPP.  The developer’s own words and publications bear this out.  For instance, in the online brochure for the shopping center, the developer notes that the proposed center “benefits from sitting at what is projected to be the largest intersection on the Island which provides easy access to tourists, the permanent population and vacation home owners.”  There is no mention of pedestrian or bicycle access because this project is automobile-centric.

The Pi’ilani Promenade shopping center fails to comply with the letter and intent of the MCCPP, that governs how we will create a desired future.  The MCCPP also lends support to the existing KMCP that calls for concentration of retail/commercial development in specific areas, none of which include this project’s location.

 

3. Land Use Commission Order

 

In 1994, Kaonoulu Ranch petitioned the Hawaii state Land Use Commission (“LUC”) for a boundary amendment to re-characterize the land now beneath the proposed Pi’ilani Promenade shopping center from agricultural to urban.  At the time, the Ranch proposed to develop a true light industrial complex; no reference to a retail shopping mall was ever made or intended.  On February 10, 1995, the LUC issued “Findings of Fact, Conclusions of Law, Decision and Order.”  The Order required, among other things, the following:

• Obtain a community plan amendment and change in zoning from the county of Maui in support of the light industrial development;
• Construct a frontage road parallel toPi’ilani Highwayand other connector roads within the petition area;
• Develop the property in substantial compliance with the representations made to the commission [“Failure to so develop the Property may result in reversion of the Property to its former classification, or change to a more appropriate classification.”  Order, paragraph 15, p. 30.]
• Record the conditions imposed on the land with the Bureau of Conveyances.

The LUC Order was recorded as required as seen in various preliminary title reports and a title insurance policy contained in the files of the Maui County Public Works Department, predating and post-dating purchase of the property by the current owner.  The provisions, therefore, run with the land.  Oddly, by letter dated April 27, 2009, written by Charles Jencks, the then-owner’s representative (Maui Industrial Partners, LLC) to Milton Arakawa, Director of Public Works, it was represented that

“With respect to the pending subdivision application for the above referenced property, please be advised that there are no deed restrictions or covenants applicable to the subject subdivision.”  The preliminary title reports and title insurance policy on file with the county suggest otherwise.

In conjunction with the application by Kaonoulu Ranch for reclassification, and as required by LUC administrative rules, a traffic study was prepared.  The traffic study was submitted based on construction of an industrial complex, not a retail outlet shopping mall and thus is of no help assessing the impact of the use now contemplated.  Additionally, the traffic study is seventeen (17) years old.

Also, while the public was given an opportunity in 1994-1995 to comment on the property’s development into a an industrial complex, there has been no opportunity for the public to comment on the new use, one with significantly different impact on the community than that which would flow from a true light industrial complex and one that was approved in a different era.

With the above in mind, it appears that the proposed Pi’ilani Promenade retail shopping mall is not in compliance with the LUC Order, which conditions the underlying land.  For instance,

• No frontage road is proposed based on plans filed with the county;
• The shopping center is not in substantial compliance with the representations made to the LUC  by the current owner’s predecessor in interest;
• While the KMCP was amended as required by the LUC, it was amended to accommodate a light industrial park with only incidental commercial intrusion (see above discussion of the KMCP).

For the above reasons, the Pi’ilani Promenade project fails to comply with the LUC’s Order.

 

4. Conclusion and Call for Action

 

Mayor Arakawa, the Pi’ilani Promenade retail outlet shopping mall

• Violates the express language of the KMCP;
• Violates the LUC’s Order;
• Denies the community a voice in the development since the only hearing offered was with respect to an industrial development proposed 17 years ago;
• Fails to consider the traffic impact the project will have on the whole of south Maui community that is dependent on the Pi’ilani Highway as a primary means of ingress and egress;
• Will result in further dependence on the automobile to the detriment of the health of the community and the concept of smart growth;
• Will destroy any hope of containing further sprawl in Kihei and South Maui, a community that is in sore need of good community planning and targeted, smart growth.

KCA and the community for which it speaks urge you in the strongest terms to assure that this project is in compliance with the Kihei-Makena Community Plan, the Maui County Countywide Policy Plan, and the Land Use Commission Order before issuing any building permits.  We request that you respond to this inquiry and address these perceived conflicts as stated herein above.

 

Sincerely,

 

Jon Miller,
President, KCA

 

Cc. Donald Couch, Council Member,South Maui
William Spence, Director of Planning
David Goode, Director of Public Works